Blog Traffic

August 22, 2009

Some of the latest media coverage of California prison debates

The debate over California's proposes prison and sentencing reforms are fascinating, and both national and local media are providing this on-going story the considerable coverage it merits. Here are some of the newest pieces I have noticed today:

"Fumo disclosure on addictions could pay off"

The title of this post is the headline of this local article discussing the possibility that a prominent defendant, who received a federal sentence already considered lenient, may be able to get another reduction based on a (little-discussed, but very significant) substance-abuse treatment program for federal prisoners. Here are the basics:

Former State Sen. Vincent J. Fumo's effort to delay his prison term by citing addictions to Xanax and alcohol may have failed, but the embarrassing disclosure might still pay off for him. Under federal Bureau of Prisons policy, the 66-year-old Fumo could slash a year off his sentence by enrolling in a substance-abuse treatment program while incarcerated. The former lawmaker thus conceivably could end up serving only three years behind bars.

In a July decision that sparked widespread anger, U.S. District Judge Ronald L. Buckwalter gave Fumo a 55-month prison sentence. With time off for good behavior, Fumo would be expected to serve just four years of that.

Carla Wilson, a regional official with the Bureau of Prisons, said the year of reduced time for addiction treatment would be in addition to the discount for good behavior. It was not known yesterday whether Fumo intended to seek admission to such a program. The leaders of his legal team, Dennis J. Cogan and Samuel J. Buffone, did not return telephone calls.

Assistant U.S. Attorney Robert A. Zauzmer, who prosecuted Fumo along with Assistant U.S. Attorney John J. Pease, declined to comment yesterday. The two have filed notice that they wish to appeal Fumo's sentence, which they have called "unduly lenient."

A dominant political figure in Harrisburg and Philadelphia for almost three decades, Fumo was convicted in March of all 137 counts with which he had been charged. A jury found he had defrauded the Senate and a pair of nonprofit organizations of at least $2 million and tried to obstruct the FBI's investigation.

Congress added the sentence reduction for drug treatment to federal law in 1994 to give inmates an incentive to seek help. Linda Thomas, a spokeswoman with the Bureau of Prisons in Washington, said prisoners who seek to enroll in the program are vetted to verify their addictions. "If they are accepted," she said, "they would work with the team to address the [dependency] issues."

Inmates get varying amounts of reduction in their time based on the length of their sentence. Fumo could qualify for up to a year, the maximum permitted any prisoner.

Also, I have been meaning to note this story from earlier this week detailing that "90 percent of U.S. bills carry traces of cocaine." I wonder if this technically makes every ATM machine guilty of federal drug dealing offenses.

Meanwhile, as detailed in this press release from the US Department of Justice this week, the traditional law enforcement approach to the drug war had a big "victory" through a major bust. Here is how the official release describes what happened:

Forty-three defendants in the United States and Mexico, including 10 alleged Mexican drug cartel leaders, have been charged in 12 indictments unsealed yesterday and today in U.S. federal courts in Brooklyn and Chicago, the Department of Justice, U.S. Drug Enforcement Administration (DEA) and U.S. Immigration and Customs Enforcement (ICE) announced. The alleged leaders and other high-ranking members of several of Mexico’s most powerful drug cartels are charged with operating continuing criminal enterprises or participating in international drug trafficking conspiracies.

"Breaking up these dangerous cartels and stemming the flow of drugs, weapons and cash across the Southwest border is a top priority for this Justice Department," said Attorney General Eric Holder. "The cartels whose alleged leaders are charged today constitute multi-billion dollar networks that funnel drugs onto our streets and what invariably follows is more crime and violence in our communities. Today’s indictments demonstrate our unwavering commitment to root out the leaders of these criminal enterprises wherever they may be found. We will continue to stand with our partners in Mexico to dismantle the cartels’ insidious operations."

Joseph Nurek pleaded guilty to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and was sentenced to 240 months in prison, the statutory maximum. On appeal Nurek challenges the district court’s application of the two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1; the government’s refusal to move for a third-point reduction in his offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1(b); the district court’s use of the 2006 Guidelines Manual (in effect at the time of sentencing) instead of the 2003 Guidelines Manual (in effect at the time of his offense); and the overall reasonableness of his sentence. We reject these challenges and affirm.

Upon reviewing the decision and the underlying facts, I am a bit more troubled that the defendant here was allowed to plead guilty to a single count with a 20-year statutory maximum than by the fact that he got the max.

Attacking Dershowitz attack on Scalia's "Catholic Betrayal"

As noted in this post, Alan Dershowitz in a commentary decided, in reponse to this week's Supreme Court Davis decision concerning the possible execution of an innocent defendant, to attack Justice Sclia's commitment to Catholicism. At Bench Memos, Ed Whelan has these posts in response:

Crooked state judges make plea to have their plea deals accepted

As noted in this post, a federal judge recently rejected the plea deal secured by two former Pennsylvania county judges who had pleaded guilty to a kickback scheme involving sending juveniles to private detention facilities. Now, as detailed in this new article from The Legal Intelligencer, the judges are seeking reconsideration of their rejected deals. Here is how the piece begins:

Two disgraced former Luzerne County, Pa., judges have asked that a federal judge reconsider his decision to reject their plea agreements.

Michael T. Conahan and Mark A. Ciavarella Jr. made a joint filing Thursday, petitioning U.S. District Judge Edwin M. Kosik to reinstate their agreed-upon sentence of 87 months in prison because neither could be found at fault for his post-plea hearing actions. Neither attempted to "obstruct and impede justice" or contradict the government's evidence in public comments, as Kosik had written, the ex-judges argued. In fact, the filing continued, Conahan and Ciavarella only did what the law entitled them to do.

The 12-page memorandum asserts that Conahan's objections to the federal probation office's pre-sentence report were within the guidelines established by the Federal Rules of Criminal Procedure and that Ciavarella was right to make public comments denying "quid pro quo" in the scandal that has been called "kids for cash" in some media outlets.

Debate and drama continues in California over prison and sentencing reform

This article from the San Jose Mercury News, headlined "California prison plan stalls in Assembly; new plan to be considered Monday," provides the latest news on the state and fate of prison and sentencing reforms being considering in California. Here are the basics from the start of the article:

After an acrimonious debate over whether dangerous criminals would be released to the streets before their sentences expire, the state Senate narrowly agreed Thursday to make sweeping changes to the correctional system to relieve severe overcrowding in state prisons.

Hours later, the Assembly balked. Speaker Karen Bass said she plans to strip the most controversial provisions that would have trimmed the state's prison population by 27,000 inmates. The Assembly version would keep about 10,000 more inmates behind bars and leave the state with a new, nearly $200 million budget hole, Bass said early today.

Bass said the new plan — to be considered Monday — would do away with proposals by Gov. Arnold Schwarzenegger to allow home detention with electronic monitoring for inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated. The Assembly will also reject the Republican governor's plan to lower sentences for certain property crimes to misdemeanors, making those offenders ineligible for prison. But the Assembly plan would let inmates earn up to four months of early release credits for completing educational, vocational and other rehabilitation programs, up from six weeks in the Senate proposal.

The events underscored the difficulty of addressing public safety issues in the highly partisan and political atmosphere of the Capitol, where prison reform has been stymied for years.

The article closes with this effective discussion on the challenging intersection of political realities and sound policy-making in this context:

The hesitation in the Assembly in part reflects the political reality of term limits. Members in that body can serve only six years and frequently are looking ahead to run for other offices. Even many Democrats could find it difficult to vote for the prison reforms, knowing they could be cast as soft on crime by a future opponent, particularly if one of the inmates granted house arrest under the measure went on to commit a violent crime.

"Some of my members thought it should have gone further, and others thought that it went too far," Bass said of the Senate-passed plan after adjourning just before midnight. "You do have a lot of hysteria that was whipped up. We were going to release all these people, and that scares folks."

Still, Schwarzenegger urged lawmakers to be courageous and vote for the proposal, which is opposed by many law enforcement agencies. Other criminal justice experts have endorsed many of the plan's reforms. "It's always ... politically risky to talk about these kinds of issues," the governor said. "But we need to do what is right for the state."

August 20, 2009

"Fans talking like lawyers over Burress, Stallworth"

The title of this article is the headline of this AP articlenoting that it is hard to avoid comparing the crimes and punishments of NFL players Plaxico Burress, Donte Stallworth and Michael Vick. Here is a snippet:

Of the first 10 reader comments about the story posted on NFL.com, half mentioned Stallworth or Vick. "The legal system is a joke" began the title of one thread on the message board on the Giants' Web site. And so it went throughout cyberspace, with debate about whether Burress' sentence was too severe inevitably comparing his punishment to that of the two other players.

Stallworth, the Cleveland Browns receiver, served 30 days in jail for running over and killing a man while driving drunk. Vick, the former Atlanta Falcons star quarterback who recently signed with the Philadelphia Eagles, served 18 months in prison for torturing animals and running a dogfighting ring for years. With time off for good behavior, Burress will likely serve 20 months.

High-profile cases often provide the public with a skewed sense of the realities of sentencing justice. The ultimate outcomes in these three cases, however, may provide a rough reflection of modern sentencing realities. As I often complain on this blog, drunk driving sentences tend to be quite lenient in light of the profound harms that drunk driving causes, and yet many "regulatory" crimes can result in more prison time than may seem essential.

Though I am not prepared to say the legal system is a joke, I will continue to view the Second Amendment as a joke even after Heller due to the fact that Burress ended up with the most prison time of these NFL criminals simply for accidently shooting himself while possessing a gun for self-defense.

As detailed in this New York Daily News article, "Plaxico Burress took a surprise plea bargain Thursday that will land the talented but troubled wide receiver behind bars for two years." Here are more legal details and some notable reactions:

The unexpected agreement with the Manhattan district attorney came nine months after Burress, 32, shot himself through the thigh with an illegal .40-caliber Glock in a crowded nightclub. "Do you wish to plead guilty?" asked state Supreme Court Judge Michael Melkonian as a chastened Burress stood before him. "Is that what you want to do?" "Yes, sir," replied the subdued star, who returns to court Sept. 22 for his official sentencing. He's expected to begin his jail term the same day.

Once he reports to jail, Burress - if he avoids trouble behind bars — should serve about 20 months, said his lawyer, Benjamin Brafman.... Burress, whose deal included two years of probation, pleaded guilty to a reduced count of attempted criminal possession of a weapon....

Ex-Giants teammate Steve Smith, speaking at the team's Albany training camp, said he felt bad for Burress. "I think they wanted to set an example with him, which sucks," the fellow receiver said. "He didn't hurt nobody else."

Mayor Bloomberg, who had called for Burress to receive at least 3 1/2 years in jail, wouldn't second-guess the plea bargain deal. "I believe the laws should apply to everyone, and the district attorney should treat everyone the same," the mayor said in Queens. "You'll have to ask the district attorney whether or not he would have made the same deal with anybody."...

Brafman, outside court, said Burress decided to take the plea after an "agonizing period of discussions." Burress "decided he wanted to put this behind him as quickly as possible," Brafman said. "This is a perfect example of how bad judgment sometimes has very bad consequences."

Brafman said Burress — who will leave a son and a pregnant wife behind when he goes to jail - intends to resume his football career after finishing his time. "I'm disappointed," Brafman said. "This breaks my heart."

Burress — who caught the game-winning touchdown in the Giants' 2008 Super Bowl win over the Patriots — testified before a grand jury last month in a "Hail Mary" attempt to beat the rap. He was indicted on two counts of weapons possession and reckless endangerment. The 6-foot-5 Burress had faced 3-1/2-to-15 years if convicted.

As regular readers know, I thought Burress should have been aggressively pressing a Second Amendment defense to these criminal charges. That approach, however, would have produced a lot of uncertainty as to his fate, but it still seems to me worth pursuing. But, with Burress surely having limited time to play pro football in light of his age, I suppose I understand his decision to seek a quick plea. I have a hard time understanding, however, why Burress was unable to secure a better plea given data (reported here around the time of his arrest) that nearly half off all persons who plead to the lesser charge of third-degree criminal possession of a weapon — a crime that has no mandatory sentence — did not serve any prison time.

I cannot help but wonder if the recent activity in the criminal cases involving Michael Vick and Donte Stallworth also played a role in Burress's decision to plead guilty. Specifically, Vick served a lot more time in prison, and this fact likely played a role in the NFL's decision to let him resume playing football as soon as he was released. Stallworth, in contrast, got a light sentence from the legal system, and the NFL followed up with a long ban from the league.

The entire Eighth Circuit today in long opinions discusses the relationship between reasonableness review and substantial assistance discounts in US v. Burns, No. 04-2901(8th Cir. Aug. 20, 2009) (available here). All followers of federal sentencing discretion and review will want to find time to read all of Burns, though this unofficial summary from the Eighth Circuit opinion page provide an effective overview of the majority opinion:

[Judge Wollman, for the Court En Banc] On remand from the Supreme Court for reconsideration of the court's en banc opinion in light of Gall v. United States. For the court's panel opinion in the case, see United States v. Burns, 438 F.3d 826 (8th Cir. 2006). For the court's prior en banc opinion, see United States v. Burns, 500 F.3d 756 (8th Cir. 2007). The government is under no obligation to apprise the district court with respect to the bases underlying its recommendation of a particular downward departure under 18 U.S.C. Sec. 3553(e) in the absence of a showing that the its recommendation was based upon an unconstitutional motive such as race or religion; Gall has not affected the limitations imposed by 18 U.S.C. Sec 3553(e) upon the district courts' authority to impose a sentence below the statutory minimum; the standard of appellate review laid down in Gall applies to the court's review of a sentence imposed under the provisions of 18 U.S.C. Sec. 3553(e); after putting aside all notions of exceptional/extraordinary circumstances, departure percentages, proportionality review and similar data-based standards of review, the question for the appellate court is whether the reduction granted the defendant is substantively unreasonable; here, the court could not say the sentence was unreasonable or an abuse of discretion, and it is affirmed.

Judge Bright, concurring, joined in part by Judge Bye.

Judge Colloton, dissenting, joined by Chief Judge Loken and Judges Riley and Gruender.

"Priority Test: Health Care or Prisons?"

The title of this post is the headline of this effective op-ed from the pen of Nicholas D. Kristof in today's New York Times. Here are excerpts:

At a time when we Americans may abandon health care reform because it supposedly is “too expensive,” how is it that we can afford to imprison people like Curtis Wilkerson?

Mr. Wilkerson is serving a life sentence in California — for stealing a $2.50 pair of socks. As The Economist noted recently, he already had two offenses on his record (both for abetting robbery at age 19), and so the “three strikes” law resulted in a life sentence.

This is unjust, of course. But considering that California spends almost $49,000 annually per prison inmate, it’s also an extraordinary waste of money.

Astonishingly, many politicians seem to think that we should lead the world in prisons, not in health care or education. The United States is anomalous among industrialized countries in the high proportion of people we incarcerate; likewise, we stand out in the high proportion of people who have no medical care — and partly as a result, our health care outcomes such as life expectancy and infant mortality are unusually poor.

It's time for a fundamental re-evaluation of the criminal justice system, as legislation sponsored by Senator Jim Webb has called for, so that we’re no longer squandering money that would be far better spent on education or health....

Look, there’s no doubt that many people in prison are cold-blooded monsters who deserve to be there. But over all, in a time of limited resources, we’re overinvesting in prisons and underinvesting in schools.

Indeed, education spending may reduce the need for incarceration. The evidence on this isn’t conclusive, but it’s noteworthy that graduates of the Perry Preschool program in Michigan, an intensive effort for disadvantaged children in the 1960s, were some 40 percent less likely to be arrested than those in a control group.

Above all, it’s time for a rethink of our drug policy. The point is not to surrender to narcotics, but to learn from our approach to both tobacco and alcohol. Over time, we have developed public health strategies that have been quite successful in reducing the harm from smoking and drinking....

Opponents of universal health care and early childhood education say we can’t afford them. Granted, deficits are a real constraint and we can’t do everything, and prison reform won’t come near to fully financing health care reform. Still, would we rather use scarce resources to educate children and heal the sick, or to imprison people because they used drugs or stole a pair of socks?

Those scholars who focus on sentencing issues disagree about plenty, but there tends to be consensus in the academic community that the creation of a sentencing commission can help a jurisdiction reform (or at least monitor) criminal justice law and practices effectively. Yet, as revealed by this Sacramento Bee article, which is headlined "Sentencing panel sets off alarms," just the creation of a sentencing commission in California is controversial. Here are the basics:

A package of money-saving prison measures that lawmakers will debate today includes creation of an appointed commission with broad powers to rewrite sentencing guidelines. The state's police chiefs and district attorneys associations slammed the sentencing commission proposal, saying it would give an unelected body authority to transform sentencing laws.

But Gov. Arnold Schwarzenegger, who usually sides with the police chiefs and district attorneys, backs the commission idea, said spokesman Aaron McLear....

The California Police Chiefs Association had supported [other prison and sentencing reforms] but will re-evaluate its stance after learning of the sentencing commission proposal, said the association president, Bernard Melekian, chief of the Pasadena Police Department.

Under the proposal, the commission would have until July 1, 2012, to establish new sentencing guidelines, which then would automatically take effect on Jan. 1, 2013, unless rejected by the Legislature and the governor.

The commission would include 13 voting members, including the chief justice of the California Supreme Court and eight others appointed by the governor. It also would have three nonvoting members, including an ex-felon selected by the speaker of the Assembly and a crime victim chosen by the governor.

Melekian said legislators hadn't told the association they were adding the sentencing commission until recently. Steinberg spokeswoman Alicia Trost disputed that, saying all the proposals had been discussed publicly for months. "We think that the fact that there's this commission that has to be overruled by the Legislature is a problem," Melekian said. "We think it's an abrogation of legislative authority."...

Earlier Wednesday, Schwarzenegger said he backed efforts to reform the state's prison system although he said he wouldn't touch California's tough "three-strikes" sentencing laws. He had just toured parts of the California Institution for Men in Chino badly damaged in an Aug. 8 prison riot. McLear said the governor supported the sentencing commission because it would allow him to appoint the members, would have a majority of public safety members and "has teeth." "It's important that the commission would have real authority," McLear said. "We've been debating this for two years. It's time to act."

Informed readers should realize that the authority proposed for the new California commission is comparable to the powers exercised by the US Sentencing Commission. Moreover, in light of the unpredictable (but predictably dysfunctional) politics of crime and punishment in California, a lot could and surely would happen between the creation of a California Sentencing Commission now and the development of new sentencing guidelines for implementation in three years.

UPDATE: Kent Scheidegger in this post at Crime and Consequence showcases the political argument against creating a sentencing commission in California:

The purpose of this commission is to effectively disenfranchise the people of California on the subject of criminal sentencing by insulating most of the legislators from the wrath of the voters when our laws are softened and criminals are let loose to prey on us again. The veto bills will be killed in committees by members from "safe" districts, and the legislators from competitive districts will be able to tell angry constituents they would have voted for the veto, but it never got to the floor....

Sentencing commissions allow philosopher kings to decide what is best for the people, whether they like it or not.

My initial response is to wonder whether Kent feels "disenfranchised" on the subject of federal sentencing and whether he thinks that the US Sentencing Commission is full of philosopher kings. As indicated above, it appears that the proposed California commission's authority is modeled on the USSC's power structure. My sense is that the USSC has been very attuned to political concerns and pressures, perhaps more so than might be healthy for effective development of sentencing law and policy.

Moreover, all objective measures — recidivism rates, budget economics, prison security and conditions — suggest that California's politicians have so far done a very poor job on "the subject of criminal sentencing." Unless and until Kent makes a full-throated case for the current California punishment and sentencing status quo, I have a hard time understanding his full-throated attack on the creation of a sentencing commission to try to make things better in California.

Compassionate release for Lockerbie bomber spotlights different visions of justice

As detailed in this New York Times article, headlined "Scotland Lets Lockerbie Bomber Return to Libya," a very high-profile terrorist is being shown compassion by Scotland:

The Scottish government announced Thursday that it was freeing the only person convicted in the Lockerbie bombing, permitting Abdel Basset Ali al-Megrahi, a 57-year-old former Libyan intelligence agent, to return home on compassionate grounds after serving 8 years of a 27-year minimum sentence on charges of murdering 270 people in Britain’s worst terrorist episode.

The decision to release him early on compassionate grounds was made against strenuous American opposition after Mr. Megrahi’s lawyers said he had little time left to live because he is suffering from terminal prostate cancer. The announcement at a news conference by Scotland’s Justice Minister, Kenny MacAskill, came almost 21 years after a bomb smuggled onto Pan Am Flight 103 exploded at 31,000 feet over the Scottish town of Lockerbie on Dec. 21, 1988, killing 259 people on board and 11 on the ground.

Of the dead, 189 were Americans. The Scottish decision was certain to provoke anguished protest from American families of the victims who had demanded that he serve his full sentence. It was his decision, and his alone, Mr. MacAskill said, that Mr. Megrahi “be released on compassionate grounds and allowed to return to Libya to die.” “I have followed due process,” he said.

The White House said in a news release that it “deeply regrets” the Scottish decision. “We continue to believe that Megrahi should serve out his sentence in Scotland.”

Mr. MacAskill acknowledged that Mr. Megrahi “did not show his victims any comfort or compassion” and that they were not allowed to go home to their families. “No compassion was shown by him to them,” he said. “But that alone is not a reason for us to deny compassion to him.”...

He said Scottish law provided for release on compassionate grounds of prisoners with terminal illnesses whose life expectancy was less than three months. After receiving medical reports from prison doctors and others, he said it was clear that “he has a terminal illness and recently there has been a significant deterioration in his health.” “The three-month prognosis is a reasonable estimate. He may die sooner. He may live longer,” he said.

While he acknowledged that “the pain and suffering will remain forever” for the families of the victims, “our belief dictates that justice be served and mercy be shown.” Mr. MacAskill said Mr. Megrahi could be leaving within an hour from Scotland’s Greenock prison, and transferred to Glasgow airport to be flown home. “I am conscious there are deeply held feelings and that many will disagree whatever my decision,” Mr. MacAskill said. “However, a decision has to be made.”...

Scottish authorities were braced for a hostile reaction from the Obama administration, which has vigorously opposed Mr. Megrahi’s release. On Wednesday Secretary of State Hillary Rodham Clinton, said it would be “absolutely wrong” to release Mr. Megrahi.

Though federal law has a statutory provision for compassionate release in 18 USC § 3582(c), the application of this statute has been notoriously stingy (as recently detailed by Mary Prince in this recent Federal Sentencingt Reporter article). As detailed in this ABA document, the US Sentencing Commission a few years ago issued new guidelines concerning the implementation of federal compassionate release rules. But the reactions of the White House and the Secretary of State to Scotland's decision in this high-profile case spotlights that the concept of compassionate release is still not seriously embraced in the United States.

August 19, 2009

California prison and sentencing reforms getting closer to reality

As detailed in this local article from California, "Democratic lawmakers and Republican Gov. Arnold Schwarzenegger are poised as soon as today to enact a package of far-reaching prison reforms that would allow some prisoners to serve the last 12 months of their sentences under house arrest, reclassify some property crimes from felonies to misdemeanors and create a new sentencing commission to examine how sentencing laws contribute to prison overcrowding." Here are more details:

Altogether, the proposal would cut the prison population by 27,000 in the next year, saving $1.2 billion, and 37,000 in the next two years. Republican lawmakers strenuously object and assert the plan would put dangerous criminals back on the streets, but they appear to be powerless to stop it.

The Capitol is under enormous pressure to act. Two weeks ago, a panel of federal judges ordered the state to craft a plan that would slash the 165,000-inmate population by about one-quarter within two years to relieve what the judges called a dangerous level of overcrowding. And the state budget plan the governor signed late last month included $1.2 billion in unspecified cuts to corrections; this proposal would realize those savings, proponents say.

To overcome GOP opposition, Democrats say they will pass the prisons package on a majority instead of a two-thirds vote. Although doing so means the plan would not take effect for 90 days, the governor's staff and Democrats say any erosion of savings would be minimal. Many ideas in the plan came from the governor, and Schwarzenegger has signaled he will sign it into law.

As detailed in this Boston Globe story, in Massachusetts yesterday a "divided Supreme Judicial Court ruled yesterday that sex offenders convicted before 2006 cannot automatically be forced to wear GPS devices because it creates an unconstitutional burden on their freedom." Here are the basics and how the decision has been received:

In a 4-to-3 decision, the court said a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively.

Ruling in the case of a Bristol County sex offender convicted in 1997, the majority said public safety must give way to constitutional protections against government intrusion into citizens’ lives, including those of sex offenders. “The GPS device burdens liberty in two ways: by its permanent, physical attachment to the offender, and by its continuous surveillance of the offender’s activities," Justice Margot Botsford wrote for the majority.

The decision, which forced judges to weigh child protection against constitutional rights, outraged law enforcement officials and a Beacon Hill lawmaker. “If there is even one individual that is not required to be monitored, and that individual reoffends, which is likely the case, that is one too many,’’ said state Representative Karyn E. Polito, a Shrewsbury Republican who sponsored the law. “There are too many instances where a child is harmed that shouldn’t be.’’

The full ruling in Massachusetts v. Cory, No. SJC-10314 (Mass. Aug 18, 2009), is available at this link [NOW FIXED thanks to a helpful reader and the folks at the NC Criminal Law blog].

Dershowitz says Davis opinion shows "Scalia's Catholic Betrayal"

The title of this post notes the headline of this new piece at the Daily Beast from the pen of Alan Dershowitz. Though I find it a bit odd that a famous Jewish law professor would be lecturing a famous Catholic Associate Justice about Catholicism, I am not too surprised that Dershowitz could not resist going after Justice Scalia for his work in the recent Davis decision. Here are snippets from the provocative piece:

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

“This court has neverheld that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday....

It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court....

Surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution....

[W]hatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Ordinarily I would not include a justice's religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.

I am not a Catholic, yet I teach principles of Catholic morality in my Harvard Law Schoolfreshman seminar, “Where Does Your Morality Come From?” I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence.... Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses — if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church — then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

Also riffing on Justice Scalia's work in Davis in the Daily Beast is LawProf Paul Campos, whose piece here is titled "Scalia's Death Row Lunacy."

As detailed in this effective local article, a federal judge in Pennsylvania has now "said 'sound policy reasons' — including the new stance of the Justice Department — led him to reject long-established guidelines for sentencing crack-cocaine defendants." Here are more basics from the article:

Senior U.S. District Judge Maurice B. Cohill Jr. characterized the guidelines as unfair.... Cohill rejected the crack-cocaine guidelines for two defendants, whom he sentenced in Erie Aug. 4. He issued two nearly identical written opinions on Thursday that detailed his reasoning.

The chief federal prosecutor in Erie, Assistant U.S. Attorney Marshall Piccinini, told Cohill last week that the guidelines were meant to consider the intense high and craving that crack cocaine brings compared to powder cocaine. As Cohill said in his written decisions, the guidelines also assumed that violence accompanied the trafficking of crack.

Piccinini said his office would file no motions objecting to Cohill's decision in the crack cases.

The rulings referenced here came in US v. Owens and US v. Russell, and here is how the Russell decision (which is uploaded below) gets started:

Defendant Cleotis Eugene Russell, Jr. appeared before this Court for resentencing on August 4, 2009. At Mr. Russell’s original sentencing hearing on November 28, 2007, I rejected Mr. Russell’s request to vary from the guideline range based on the imbalance in sentencing between crack and powder cocaine. The United States Court of Appeals for the Third Circuit remanded this case for resentencing because the United States Supreme Court in Kimbrough v. United States, 128 S. Ct. 558 (2007) and Spears v. United States, 129 S.Ct. 840 (2009), effectively overruled United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), a case I relied upon in rejecting Mr. Russell’s request for a variance. At resentencing I applied a 1-to-1 crack-to-powder ratio, an approach to sentencing in crack cocaine cases which I intend to apply in all future crack cocaine sentencings. I write this Opinion to explain my reasons for this.

Oklahoma legislator pushing death penalty for repeat sex offender

Though I read the 2008 Supreme Court decision in Kennedy as suggesting that the death penalty is always constitutionally disproportionate for non-murder personal crimes, it seems that some state legislators still view capital punishment for certain sex offenders as a possibility. Specifically, as detailed in this local piece, which is headlined "Debate Continues Over Death For Sex Offenders," at least one Oklahoma legislator is not willing to give up on death as a possible punishment for repeat sex offenders:

The debate over whether the death penalty should be an option for repeat sex offenders is heating up. One state lawmaker says yes and that he plans to introduce a bill to make it happen. But, not everyone is on board.

The move comes after the recent arrest of Marcus Berry, a twice-convicted sex offender who is now being held in the Tulsa County Jail on a million dollars bond for allegedly abducting a two-year-old girl from her front yard.

Many people are asking how can a man who has two convictions for lewd molestation still be out on the streets? Being taken away in handcuffs isn't something new for the 56-year-old, who was convicted of lewd or indecent acts or proposals to a child in 1986 and lewd molestation in 1993. On that 1993 conviction, Berry served less than 13 years of a 30-year sentence before being released.

Just last week, Berry was arrested after police found his truck in a field. Inside, police say Berry was found with his pants down. Next to him -- a partially dressed two-year-old girl he allegedly kidnapped from her home.

State Representative Rex Duncan wants to make sure that never happens again. "As a father of daughters, this just screams out for some change, something different," Duncan says. "This guy is the Willy Horton of child rapists, child molesters. And, it should never have happened."

Duncan wants to make it tougher for sex offenders. His legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction. "They need to die in prison so that Oklahoma families and parents will have the peace of mind and confidence to know that a Marcus Berry will never walk the streets again," Duncan says.

A similar bill passed in Oklahoma in 2006, but was shot down by the Supreme Court a year later. Duncan says his bill would be much more specific than that bill and thinks it would be upheld by the Supreme Court.

When the Supreme Court took up the Kennedy case, I was disappointed that the Justices were to consider the constitutionality of capital punishment for child rape in the context of a first offender rather than a repeat child rapist. Though I do not read the majority opinion in Kennedy as allowing different constitutional treatment of recidivist offenders, other Eighth Amendment rulings clearly support the concept that a punishment which would be unconstitutional for a first offender might be permissible for a repeat offender. Thus, perhaps what is being debated in Oklahoma is not so constitutionally crazy.

The majority rejects Herrod’s claim, concluding that the sentence imposed by the district court was procedurally reasonable. While I agree with the majority’s conclusion that the district court’s sentencing pronouncement was sufficient, I write separately on this particular issue to emphasize that sentencing judges are responsible for providing an adequate record for appeal. Our case law imposes this obligation on district courts for reasons of fairness and practicality. From every perspective, it is preferable for district courts to explicitly address every nonfrivolous argument raised by a defendant. Expressly articulating the grounds for rejecting the particular claims raised by a defendant, at least with respect to a defendant’s nonfrivolous arguments, promotes several critical goals: (1) it provides the defendant with a clear understanding of the basis for his or her sentence; (2) it allows the public to understand the rationale underlying the chosen sentence; and (3) it helps this Court avoid the difficulties of parsing the sentencing transcript when determining whether the district court in fact considered the defendant’s arguments. In fact, if district courts fully complied with this obligation, many frivolous appeals and clarification remands could be avoided....

[I]t is not enough that the district court considerthe parties’ nonfrivolous arguments, it also must explain on the record its reasons for accepting or rejecting such arguments. Requiring district courts to articulate their reasoning on the record is critical, otherwise the transcript would be devoid of any evidence that the district court in fact considered the parties’ arguments, let alone ruled on those issues. Absent such a public statement, this Court would be forced to make inferences and guess at what arguments and sentencing factors the district court actually considered when determining a defendant’s sentence, something we repeatedly have expressed disdain for doing.

August 18, 2009

A great new blog for resources on criminal informants, aka snitches

CrimProf Alexandra Natapoff has done ground-breaking work on criminal informants in articles and a book, and I am pleased to learn that she has now brought her expertise to the webvia a new blog called Snitching Blog. An introductory post here provides details of the project:

Snitching Blog is about a part of our criminal system that most people know little or nothing about: criminal informants, or snitches. At any given moment, thousands of informants are trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace. Police and prosecutors often rely heavily on information obtained from snitches — especially in drug enforcement but also in white collar crime, organized crime, and terrorism investigations. In fact, it is impossible to fully understand the U.S. legal system without understanding snitching. Nevertheless, there is very little public information available about this important public policy. That's where Snitching Blog comes in.

This blog does a bunch of things. It discusses how snitching works — on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators — check out the links on the left. It covers current events and news stories. And it lets you share your own experiences by posting a "Testimonial" — click on the link at the right.

Looks like I have another regular must-read to add to my blog browsing, especially since so many big sentencing cases have a snitching element. For example, Sasha has this recent post on the Troy Davis case, titled "Troy Davis Gets a Hearing — Recantation Redux."